misconduct to the death.' It will then, in strict law, be for the prisoner to prove that he was not negligent, or at all events was not criminally negligent, in acting as he did. But in practice the prosecution generally takes upon itself the burden of proving affirmatively that the prisoner was guilty of criminal negligence.

Of course, if the death was caused by a pure accident, no crime is committed. But if the act done or the omission made was one which any one of ordinary prudence ought, under the circumstances, to have known to be dangerous to human life or likely to cause grievous bodily injury, then to do that act or make that omission is culpable negligence and not a pure accident. Where what has happened was in the circumstances so probable a result of what the prisoner did that a person of ordinary prudence would have taken precautions to prevent it, and the prisoner omits to take such precautions with fatal results, he is clearly guilty of negligence. Such negligence may consist either in the doing of an act rashly without knowing its nature or probable consequences, or in the careless and incautious manner of doing it.

But to convict the prisoner it is not sufficient to show that he was guilty of some negligence in the matter.2 An amount of negligence, which would entitle an injured plaintiff to damages in a civil action, will often be insufficient. To render the defendant criminally liable, the jury must be satisfied that the prisoner's state of mind was criminal. Whenever the natural or probable consequence of the prisoner's conduct is to cause death or grievous bodily harm to another, and the prisoner is culpably heedless of this obvious fact or culpably reckless as to whether such consequences follow or not, his state of mind is criminal; and, if death ensue, he will be convicted of manslaughter. But without some such evidence of mens rea, mere negligence will not expose him to penal consequences, though it may render him liable to a civil action.

It is difficult to define with any greater precision the degree

1 Per Huddleston, B., in Isitt v. Railway Passengers' Assurance Co. (1889), 22 Q. B. D. at pp. 510, 511.

2 See R. v. Izod (1904), 20 Cox, 690.

of negligence which will be deemed criminal. But, to be criminal, it must be so gross and culpable as to deserve the epithet "wicked;". it must be the outcome of a criminal state of mind. There must be some evidence of mens rea in addition to the proof of negligence. Such negligence must be the personal negligence of the accused, not merely that of his servants. There must be a personal duty on the accused, he must personally neglect that duty and such neglect must directly cause the death; or no indictment will lie. "It is a general principle of our criminal law that there must be as an essential ingredient in a criminal offence some blameworthy condition of mind. Sometimes it is negligence, sometimes malice, sometimes guilty knowledge; but as a general rule there must be something of that kind which is designated by the expression mens rea. Moreover, it is a principle of our criminal law that the condition of mind of the servant is not to be imputed to the master."

If a person takes upon himself to administer drugs being ignorant of their probable effects and thus causes the death of another, he will be guilty of criminal negligence.

So, too, a medical man must, at his peril, use proper skill and caution in administering a poisonous drug or in performing an operation dangerous to human life.3

If a man accidentally kills another while shooting at a mark or target in a place adapted for that pastime and under circumstances which render such shooting permissible, he commits no crime. But where A., B. and C. for the purpose of practising shooting went into a field close to roads and houses, taking with them a rifle which would be deadly at a mile, and B. placed in a tree as a target a board which was handed to him by A. in the presence of C., and all three fired shots at this board from a distance of about 100 yards, taking no precautions of any kind to prevent danger to the public from such firing, and one of the shots thus fired by one of them, though it was not proved by which, killed a boy in a tree in a garden near the field at a spot distant 393 yards from the firing point, the jury found A., B. and C. guilty of manslaughter, and it was held by the Court for Crown Cases Reserved that all three had been guilty of a breach of duty in firing at the spot in question without taking proper precautions to prevent injury to others, and were rightly so convicted.

1 R. v. Bennett (1858), Bell, C. C. 1; R. v. Huggins (1730), 17 St. Tr. 298, 310. And see ante, pp. 129, 130.

2 Per Cave, J., in Chisholm v. Doulton (1889), 22 Q. B. D. at p. 741.

3 R. v. Spencer (1867), 10 Cox, 525; R. v. Macleod (1874), 12 Cox, 334.

A R. v. Salmon and others (1880), 6 Q. B. D. 79.

CHAPTER IV.

JUSTIFIABLE AND EXCUSABLE HOMICIDE.

MURDER consists, as we have seen, in feloniously causing the death of another with malice aforethought-manslaughter, in feloniously causing the death of another without malice. aforethought. But a homicide is "justifiable " when death is lawfully inflicted, and "excusable" when the death is the result of an accident. In the two latter cases the homicide is no crime.

The distinction between justifiable and excusable homicide was formerly of considerable importance. If the homicide was justifiable the accused was found not guilty, whereas if the homicide was excusable the accused was found guilty and his chattels were forfeited to the Crown; though ultimately it became usual for the Crown to restore the chattels1 and grant the accused a free pardon. In 1828 the general forfeiture of goods for excusable homicide was abolished. Now in cases both of justifiable and excusable homicide the accused is found not guilty.

JUSTIFIABLE HOMICIDE.

Justifiable homicide may be defined as the killing of a human being, either in the discharge of a legal duty or in the exercise of a legal right. In both cases the act which causes death is intentional and lawful. The circumstances which create such a duty or confer such a right may be grouped under five heads:

(1) Where a duly authorised officer of justice executes a criminal, condemned to death by a competent Court. If any person other than the duly authorised executioner carries out the sentence, he is guilty of murder. Again, the mode of execution must be strictly in accordance with the sentence; hence if the officer of justice beheads a criminal who is sen

1 Except the "deodand," i.e., the instrument with which the death was caused. For further information as to deodand, see Pollock and Maitland, History of English Law, Vol. I. p. 473.

29 Geo. IV. c. 31, s. 10, re-enacted by 24 & 25 Vict. c. 100, 8. 7.

tenced to be hanged or vice versa, he is guilty of murder. A technical defect in the proceedings is immaterial, if the Court had jurisdiction over both the subject-matter and the person

condemned.

(2) An officer of justice is, in many cases, entitled to use force in order to arrest a criminal, or to prevent his escaping from custody. If it is necessary to use deadly weapons in order to effect the arrest or to prevent the escape of the criminal and death results, the homicide is justifiable. Policy, or rather necessity, obviously requires that every minister of justice should be protected, not only in executing any express sentence of the law, but also in doing every act which the law requires him to do in discharging the duties of his office. On the same principle protection is extended to all private persons who are called upon to assist officers of justice in executing their duties. So a gaoler may kill any convicted prisoner who is endeavouring to escape from custody. In some cases also the law confers upon private citizens the right, and imposes upon them the duty, of taking prompt action for the advancement of justice and the prevention of crime, although no officer of justice be at hand. And generally whenever A. has lawful authority to arrest or imprison B. and uses only proper means for that purpose, then if B. resists and is killed in the struggle, the homicide is justifiable; although if A. be killed by B., B. is guilty of murder.

(3) The legal position of persons, whether military or civilian, who cause death in dispersing a riot, has been discussed in a previous chapter.1 Where the mob is guilty merely of a common law riot, which is a misdemeanour, only slight force may be used for this purpose and not deadly weapons. As soon, however, as any of the rioters begin to commit any felonious violence, such as arson, housebreaking or murder, deadly weapons may be used by either soldiers or civilians, provided they can afterwards satisfy a jury that such extreme measures were reasonably necessary in the circumstances to disperse the mob and to prevent any further felonious violence. Where, however, the riot has become felonious under the 1 Ante, pp. 167, 168,

provisions of the Riot Act, 1715,' any person engaged in lawfully dispersing the mob is indemnified against all proceedings, civil or criminal, by the express words of section 3 of that Act.

If in the course of dispersing a riot an innocent by-stander should be accidentally killed, two questions arise :—

1. Whether under the circumstances it was necessary in order to disperse the riot to have recourse to deadly weapons.

2. Whether there was any negligence in the use of deadly weapons which caused the death of the person who was not rioting.

Thus, where a man named Lewis, who was assisting in the suppression of a riot, shot at a rioter and accidentally killed a boy who was merely looking on, Tindal, C. J., remarked: "If the firing of the pistol by Lewis was a rash act, uncalled for by the occasion, or if it was discharged negligently and carelessly, the offence would amount to manslaughter, but if it was discharged in the fair and honest execution of his duty, in endeavouring to disperse the mob, by reason of their resisting, the act of firing the pistol was then an act justified by the occasion, under the Riot Act before referred to, and the killing of the boy would then amount to accidental death only, and not to the offence of manslaughter." 2

(4) Where a person kills another in order to prevent his committing some forcible and atrocious felony, such as murder, rape, robbery, burglary or arson, the homicide is justifiable if there was no other obvious means of preventing the crime. If there were any such means, resort should first be had to them. If the crime be a felony against the person, the party attacked may repel force by force, and will be excused from the consequences. Thus a woman in defence of her chastity may lawfully kill a man who is attempting to ravish her. So, too, the owner of a dwelling-house, or any member of his family, or even a lodger, may, in order to prevent arson or burglary, lawfully kill the assailant. And not only the party whose person or property is attacked or his servants, but also in most cases any stranger who is present at the time, will be equally justified in killing the aggressor.*

Where a son, believing that his father was cutting the throat of his mother, shot and killed him, it was held that, if he had reasonable grounds

11 Geo. I. st. 2, c. 5.

In his charge to the grand jury at Bristol, January, 1832, quoted in 5 C. & P. at p. 267, n.

3 R. v. Symondson (1896), 60 J. P. 615.

1 Hale, 481, 484; Fost. 274.